Free Motion for Protective Order - District Court of Colorado - Colorado

Case 1:02-cv-01977-RPM

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 02-cv-1977-RPM-BNB (Consolidated with Civil Action No. 02-cv-1978-RPM-BNB for pretrial purposes) SPA UNIVERSAIE and VACATION TAN & TRAVEL, Plaintiffs,

QWEST COMMUNICATIONS mTERNATIONAL, WC. and QWEST CORPORATION, Defendants.

STIPULATED PROTECTIVE ORDER
Subject to Court approval, the parties, Plaintiffs and Defendants Qwest Communications International, Inc. and Qwest Corporation (collectively "Qwest"), by the signatures of their counsel on this Stipulation and Agreed Protective Order, stipulate and agree to the following Protective Order: 1. In connection with discovery in this action, the parties may designate any

document, thing, material, testimony or other information derived therefrom as "Confidential" under the terms of this Protective Order (hereinafter *'Orderm).Confidential information is any such document, thing, material, testimony or other information derived therefrom which has not been made public, including. but not limited to, trade secrets or other highly confidential commercial information, material required to be kept confidential by state or federal law, or other highly sensitive information. The party making the designation certifies that there is a good faith

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basis in law and fact for the designation within the meaning of Federal Rule of Civil Procedure 26(g). 2. Material designated as confidential under this Order, the information contained

therein, and any summaries, copies, abstracts, or other documents derived in whole or in part from material designated as confidential (hereinafter "Confidential Material") must be treated as confidential by all parties to this litigation and used only for the purposes of this litigation and for no other purpose. Confidential Material shall not be used by counsel for the parties or any other individual to whom Confidential Material is disclosed or made available for any commercial, business, competitive or other purpose whatsoever.

3.

Confidential documents shall be so designated by stamping copies of the

document produced to a party with the legend "CONFIDENTIAL." Stamping the legend "CONFIDENTIAL" on the cover of any multi-page documents shall designate all pages of the document as confidential, unless otherwise indicated by the producing party.

4.

Testimony taken at a deposition may be designated as confidential by making a

statement to that effect on the record at the deposition or by providing written notice to opposing counsel designating such portions as confidential no later than twenty (20) days after receipt of the transcribed testimony. All transcribed testimony shall be treated as confidential during this twenty (20) day period. Arrangements shall be made with the court reporter taking and transcribing such deposition to separately bind such portions of the transcript containing information designated as confidential, and to label such portions appropriately.
5.

Confidential Material produced pursuant to this Order may be disclosed or made

available only to the Court, to counsel for a party (including the paralegal, clerical. and secretarial staff employed by such counsel), and to the "qualified persons" designated below:

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a party, or an officer, director, or employee of a party deemed necessary by counsel to aid in the prosecution, defense or settlement of this action; experts or consultants (together with their clerical staff) retained by such counsel to assist in the prosecution, defense or settlement of this action; court reporter(s) employed in this action; a witness at any deposition or other proceeding in this action; any reprographic agency engaged for the purpose of reproducing or copying the Confidential Material; and any other person as to whom the parties agree in writing.

6.

Counsel for all parties will ensure that each of the attorneys or individuals

associated with them, each "qualified person," and any other person to whom the Confidential Material is disclosed, disseminated or divulged are familiar with and have agreed to be bound by the terms of this Stipulation and Agreed Protective Order before disclosing, disseminating or divulging the Confidential Material. Any individual to whom disclosure of Confidential Material is made shall execute the Affidavit of Compliance and Nondisclosure Agreement, attached hereto as Attachment A. No Confidential Material shall be disclosed, disseminated or divulged to any person employed or otherwise affiliated with a competitor of any defendant, except that the foregoing restriction shall not apply to independent third party consultants who provide consulting services to telecommunications providers other than the defendants, provided such consultants execute the required affidavit. 7. Only qualified persons may attend depositions at which Confidential Material is

used, discussed, or otherwise disclosed; alternatively a person who does not qualify as a qualified

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person may attend such deposition but shall be excluded from any testimony that deals with Confidential Material.

8.

Nothing herein shall impose any restrictions on the use or disclosure by a party of

material obtained by such party independent of discovery in this action, whether or not such material is also obtained through discovery in this action, or from disclosing its own Confidential Material as it deems appropriate.
9.

If Confidential Material, including any portion of a deposition transcript

designated as Confidential, is included in any papers to be filed with the Court, such papers shall not be filed with the Court unless filed under seal by placing the documents and/or other information in a sealed envelope marked "CONFIDENTIAL - TO BE OPENED ONLY UPON FURTHER ORDER OF OR BY THE COURT." No Confidential Material produced by either party shall be made public in any way absent the producing partyqswritten consent and/or further order of the Court. All Confidential Material produced or disclosed by any party and used in depositions shall also be sealed and placed in a separately bound exhibit binder. 10. This Order shall be without prejudice to the right of the parties (i) to bring before

the Court at any time the question of whether any particular document or information is confidential or whether its use should be restricted or (ii) to present a motion to the Court under Fed. R. Civ. P. 26(c) for a separate protective order as to any particular document or information, including restrictions differing from those specified herein. This Order shall not be deemed to prejudice the parties in any way in any future application for modification of this Order. 1 1. This Order is entered solely for the purpose of facilitating the exchange of

documents and information between the parties to this action without invohing the Court unnecessarily in the process. Neither the taking of, nor the failure to take, any action to enforce

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the provisions of this Protective Order, nor the failure to take any other action, shall constitute a waiver of any right of any of the parties to seek and obtain protection or relief of any kind. Nothing in this Order nor the production of any information or document under the terms of this Order nor any proceedings pursuant to this Order shall be deemed to have the effect of an admission or waiver by either party or of altering the confidentiality or non-confidentiality of any such document or information or altering any existing obligation of any party or the absence thereof. 12. This Order, the obligations of the undersigned parties pursuant to this Order, and the obligations of those executing Affidavits of Compliance and Nondisclosure Agreements shall survive the final termination or conclusion of this action. To the extent that the information contained in Confidential Material is not or does not become known to the public, the Court shall retain jurisdiction to resolve any dispute concerning the use of information disclosed hereunder. Upon termination of this case, counsel for the parties shall assemble and return to each other all documents, material and deposition transcripts designated as confidential, and all copies of same in the possession of counsel for the parties or in the possession of persons executing the Affidavit of Compliance and Nondisclosure Agreement, or shall certify the destruction thereof.

IT IS SO ORDERED.
DATED: A p r i l , 2006 Richard P. Matsch Senior United States District Judge

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day of April, 2006. AGFEED AND APPROVED AS TO FORM: ALL PLAINTIFFS

y their attorneys,

Randall K. Berger KIRBY McINERNEY & SQUIRE, LLP 830 Third Avenue, 10th Floor New York, NY 10022 Telephone: (2 12) 37 1-6600 Joseph P. Garland LAW OFFICE OF JOSEPH P. GARLAND 275 Madison Avenue, 11th Floor New York, NY 10016 Telephone: (2 12) 66 1-9400 Thomas P. McMahon POWERS PHILLIPS, P.C. 700 17th Street, Suite 1600 Denver, CO 80202 % ' Telephone: (303) 2 - 1900 Facsimile: (303) 293-8938 Email: tpm@,ppbfh.com

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DEFENDANTS QWEST COMMUNICATIONS INTERNATIONAL, INC. and QWEST

MUSGRAVE & THEIS, LLP Republic Plaza, Suite 4450 370 Seventeenth Street Denver, Colorado 80202 Phone: 303-385-4700 Fax: 303-385-4725

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Attachment A Affidavit of Compliance and Nondisclosure Agreement

1,

, do solemnly swear that I am fully familiar

with the terms of the Stipulation and Agreed Protective Order entered in Spa Universaire and Vacation Tan & Travel, v. Qwest Communications International, Inc. and Qwest Corporation, United States District Court for the District of Colorado, Civil Action No. 02-M-1977 (BNB) (Consolidated with Civil Action No. 02-M-1978 (BNB) for pretrial purposes), and hereby agree to comply with and be bound by the terms and conditions of said Order unless and until modified by further Order of the Court. I will only use any Confidential Material disclosed or made available to me for purposes of this litigation and for no other purpose. I will not use any Confidential Material disclosed or made available to me for any commercial, business, competitive or other purpose whatsoever. I hereby consent to the jurisdiction of the Court for purposes of enforcing this Affidavit of Compliance and Nondisclosure Agreement.

DATED: p a m e of Signatory Typed]